Pollard's Lawyers File Brief Challenging Life Sentence - A Must-Read!

Joanne Palmer - Jewish Standard (New Jersey) - September 24, 2004

Quote: " [T]he government should not be permitted to argue that a person was foolish for believing the government.that's what they're saying, that Pollard was a fool for believing the government. When the government lies, it's because it wants to hide somethingto cover something up. It's apparent given the way the government has blatantly lied, that they're covering something up. It's extremely disturbing to see the lengths to which the government will go in order to deny Jonathan Pollard's rights." (Jacques Semmelman)

Full text of article:

"I think this case is atypical because it has involved so many documented government lies," said attorney Jacques Semmelman of Bergen County.

Semmelman and Eliot Lauer, partners at Curtis, Mallet-Prevost, Colt & Mosle in Manhattan, are representing Jonathan Pollard as the convicted spy tries to have his life sentence reduced or overturned. Last week the pair filed a brief to that end in the United States Court of Appeals for the District of Columbia.

As he talked about Pollard's situation in a telephone interview with The Jewish Standard, Semmelman occasionally let outrage break through his carefully constructed legal arguments.

Pollard has been in prison since 1985, in 1987 he pled guilty to spying for Israel. He does not deny his guilt, although he insists that he neither harmed nor intended to harm the United States. The plea bargain he thought he'd accepted specified that he would not be given a life sentence but that sentence was levied nonetheless. A flurry of hearings and representation by two other lawyers dug him deeper into prison; by the time Semmelman and Lauer took on his case, pro bono, in 2000, the statute of limitations seemed to bar Pollard from any more consideration.

Last October, Semmelman and Lauer's application to appeal Pollard's life sentence was rejected. In June, in a reversal the pair hopes will be pivotal, they won the right to submit the brief they just handed in.

The brief addresses two separate issues. The first involves habeas corpus, which is a procedural device for challenging incarceration on constitutional grounds. Pollard is claiming that his original lawyers performances were so grossly inadequate that he did not even know that he should have appealed his sentence. Therefore, he should be allowed to appeal. But a 1996 federal law requires that all such claims must be made within a year.

"Because of his attorneys' failings," Semmelman argues, Pollard "was denied the ability to obtain appellate review." Because of the statute of limitations, though, first Semmelman and Lauer have to win their client's right even to ask for that review.

Pollard's first lawyer, Richard Hibey, advised Pollard to take the plea bargain
in return for a promise not to have to spend his life in prison. Hibey didn't file the one-page notice of appeal "that any competent lawyer would have filed," Semmelman said. "It's like a doctor performing major surgery and not doing anesthesia first. It's that basic."

Pollard's second lawyer, Hamilton Fox III, covered up Hibey's shortcomings; in the brief, Semmelman and Lauer call Fox's work a "whitewash."

In 1990, in a brief he submitted to the federal court, Fox praised Hibey's work. The court agreed, writing, according to Semmelman and Lauer's brief, that the lawyer's performance had been "skillful," "eloquent," and free of any errors." [*J4JP: The government, not the court, agreed and echoed the praise of Hibey's performance.]

"The government now takes the position that Pollard should never have believed what the government said," Semmelman charged. "It's to Pollard's detriment that he believed the government's praise of Hibey."

"Our response is that the government should not be permitted to argue that a person was foolish for believing the government because the government is known to be a chronic liar. I'm putting is sarcastically, but that's what they're saying, that Pollard was a fool for believing the government."

Semmelman is buoyed by a U.S. Supreme Court decision, in a case called Banks vs., Dretke, handed down in February. In that case, he said, a convict came to believe that the government had withheld exculpatory evidence; that is illegal. On that basis, the convict filed for habeas corpus; without any explanation the court denied both the charge and the request. Years passed, eventually the convict, who was still in jail, learned that the government really did have the exculpatory evidence, and tried again for habeas corpus. The government tried to reject the appeal, saying that the convict should have tried harder in the first place. It was now too late. The Supreme Court rejected the government's argument, however, saying that because the court "told the prisoner that it denied his original claim, the prisoner had every right to accept that denial as truth. A prisoner cannot be penalized for believing the government, and cannot be denied habeas corpus for having done so." Semmelman said.

"The decision is highly relevant, very much on point, and obviously in our favor," he added.

The other issue the lawyers address in their brief is access to documents. When Pollard was sentenced, five documents about the case were at least partially sealed. "No member of the public could gain access to them," Semmelman said. They seemed to be vitally important to the case, though, given how often they were cited. One in particular, written by Caspar Weinberger, President Ronald Reagan's defense Secretary, was believed to hold the reason the government was so adamant in calling for a life sentence for Pollard. The lawyers asked for the security clearances that would allow them to see the documents; in their application they stressed that they wanted only - and wanted exactly -that level of clearance. After they successfully completed the long, complete process, both were given clearance - and then told the level they had been given was inadequate. After much back and forth, eventually they learned that their level of clearance should have given them access to the documents. They also learned that between November 1993 and January 2001, government officials had gained access to those documents 25 times.

"We need to see those documents," Semmelman said.

Among other reasons, "we know from the public court file that part of what is in the file are predictions to by Caspar Weinberger as to possible outcome based on what Pollard did. We would like to see what the predictions were, because it may be that at the time of the sentencing the judge read the predictions, became alarmed, and thought that the possible doomsday scenario justified life in prison. But if these predictions have not materialized, after all these years, the judge should take that into account.

"But we can't even begin this process until we see what's in the sealed records."

From 1987 to 1990, Semmelman who graduated from Harvard Law School after earning a doctorate in mathematics from Harvard University, was an assistant U.S. attorney in the eastern district of New York. Given that experience, he did not expect the government to act as it has in the Pollard case. "The government doesn't lie because it's made up of mendacious people," he said. "The government is not pathological. When the government lies, it's because it wants to hide something. They want to cover something up.

"They don't want us to see the sealed material, and until we see it we can't know what they don't want us to see. But it's apparent, given the way the government has blatantly lied, that they're covering something up.

"It's extremely disturbing to see the lengths to which the government will go in order to deny Jonathan Pollard's rights." He concluded.